272 Mass. 138 | Mass. | 1930
This case is reported for determination as to the correctness of the action of the trial judge in sustaining the demurrer of the defendant Macdougal. The declaration alleges a contract between the plaintiff and the two defendants whereby the plaintiff entered the employ of the Thread Company as a salesman, complete performance of all obligations resting on the plaintiff, whereby he became entitled to a salary and also to a commission of two per cent on sales made by him, payment to him of all salary due him but refusal to pay all the commissions due him, and seeks recovery for the balance due on account of commissions. No other breach of the contract is alleged and no other recovery is sought. Copy of the contract is annexed to the declaration. It is stated in the initial paragraph of the contract that it is made “by and between the Commonwealth Thread Co., Inc., William W. Macdougal, parties of the first part, and Prescott W. Lovell, party of the second part.” Then come these words: “Whereas said Thread Company desires to employ and said Lovell desires to work for said Thread Company as salesman . . . Now therefore, for and in consideration of One Dollar
The cause assigned in the demurrer of Macdougal is that the declaration sets out no cause of action against him. This presents the only question to be decided. Stated more analytically, the question is whether the contract is joint throughout, rendering each defendant liable jointly with the other for any and every breach, or whether it is severable.
Where the contract is in writing, there is no fixed and unyielding rule for disposing of contentions touching its meaning except the general one that the intention of the parties drawn from the entire instrument is to be ascer
The contract here in issue indicates that the payment to the plaintiff of the commission due him under the contract is solely the obligation of the Thread Company. That subject is covered by a distinct paragraph of the contract in which Macdougal is not mentioned. Words could hardly be more specific to the effect that the duty to pay the commissions to the plaintiff rests upon the Thread Company alone. There is nothing in other parts of the contract to indicate that Macdougal has any interest in the matter of commissions. No control direct or indirect over that subject is vested in Macdougal. He is completely severed from that matter by the terms of the contract. Both the rate of the commission and the principal on which it is to be computed are established by the words of the contract. It is apparent from the nature of the undertaking that Macdougal is not concerned with com
Order sustaining demurrer affirmed.